Not for Publication in West's Federal Reporter
               Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                        For the First Circuit


No. 04-1490

                            JERRY L. ACOSTA,

                         Plaintiff, Appellant,

                                      v.

                       JO ANNE BARNHART,
         COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION,

                         Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF PUERTO RICO

      [Hon. J. Antonio Castellanos, U.S. Magistrate Judge]


                                   Before

                        Selya, Lynch and Lipez,
                            Circuit Judges.


     Salvador Medina de la Cruz on brief for appellant.
     H.S. Garcia, United States Attorney, Lisa E. Bhatia, Assistant
U.S. Attorney, and Robert J. Triba, Regional Chief Counsel, Social
Security Administration, on brief for appellee.



                           November 12, 2004
     Per     Curiam.       Claimant   Jerry    L.       Acosta    appeals      from   the

district court's judgment affirming the denial of Social Security

benefits.1    The Commissioner of Social Security found that claimant

suffered from the following severe impairments (or combination of

impairments): herniated disc, high blood pressure, and adjustment

disorder.     In denying     benefits, the Commissioner first determined

that although claimant could not return to his past work as a truck

driver     and     ship    unloader    (medium,         semi-skilled),          claimant

nonetheless had the residual functional capacity ("RFC") to perform

light,    unskilled       work.     Then,     using      the     Medical     Vocational

Guidelines (the "Grid"), 20 C.F.R. Part 404, Subpart P, App.2, as

a framework, the Commissioner concluded that claimant was not

disabled.

     On appeal, claimant argues that the administrative law judge

(ALJ) 1) failed adequately to consider his allegations of pain in

assessing his RFC, and 2) erred in relying on the Grid rather than

obtaining the testimony of a vocational expert                   because claimant's

nonexertional       limitations     (caused     by      pain     and   an    adjustment

disorder)     significantly        eroded   the     occupational         base    at   the

relevant exertional level.

     I.      Consideration of Pain in Assessing RFC

     The     ALJ   found    that    claimant      had    a     medical      condition   -


     1
        Upon consent of the parties, the case was referred to a
magistrate judge for all proceedings and judgment. See 28 U.S.C.
§ 636(c).

                                        -2-
herniated disc at L4-L5 and L5-S1 - that reasonably could be

expected to cause some discomfort and pain, but not to the extent

alleged.     In    reaching    that   conclusion,   the   ALJ   relied   upon

examining physicians' records of claimant's medical condition,

including claimant's descriptions of the location and intensity of

his pain.    Claimant waived his right to appear at the hearing

before the ALJ, which would have provided an opportunity for

claimant to explain and demonstrate the functional impact of his

pain.    Two RFCs were prepared, one by an examining physician and

the other by a non-examining physician, both of which noted that

they had taken claimant's allegations of pain into account.               The

ALJ's approach was consistent with the policy described in Avery v.

Sec'y of HHS, 

, 23 (1st Cir. 1986).

     The    only    specific    exertional   limitation     that   claimant

identifies as support for the argument that his pain precluded him

from performing the full range of light work is            an inability to

lift/carry more than 10 pounds, even occasionally.2                 Even if


     2
        Limitations of functions are classified as exertional or
nonexertional. See 20 C.F.R. § 404.1569a. Impairments, including
pain, can cause exertional and/or nonexertional limitations of
functions. 

are those that affect a
claimant's "ability to meet strength demands of jobs (sitting,
standing, walking, lifting, carrying, pushing, and pulling)." 

are those that affect a claimant's
"ability to meet the demands of jobs other than the strength
demands." 

non-strength demands of jobs are the
ability to concentrate, or to perform "the manipulative or
postural functions of some work such as reaching, handling,
stooping, climbing, crawling, or crouching." 

pain so limited him, however, the Grid would still

dictate a finding of not disabled.                The Commissioner found that

claimant was not disabled based on section 202.18 of the Grid,

involving the subsidiary finding that claimant could perform light

work (involving occasional lifting/carrying of up to 20 pounds).

If   the    capacity     to    perform       sedentary   work    (involving     the

lifting/carrying of no more than 10 pounds) is substituted for the

capacity to perform light work, section 201.19 of the Grid would

apply    and    would   also   direct    a     finding   that   claimant   is   not

disabled.       Either way, substantial evidence sustains the ALJ's

determination of not disabled under the Grid. See Gordils v. Sec'y

of HHS, 

(1st Cir. 1990).

     II.       Impact of Nonexertional Limitations on Occupational Base

     Claimant's main argument on appeal is that the ALJ erred in

relying exclusively on the Grid to determine whether there were a

significant number of jobs in the national economy that he could

perform.       "The Grid is based on a claimant's exertional capacity

and can only be applied when claimant's nonexertional limitations

do not significantly impair claimant's ability to perform at a

given exertional level." Rose v. Shalala, 

, 19 (1st Cir.

1994).     "If a non-strength impairment, even though considered

significant, has the effect only of reducing that occupational base

marginally, the Grid remains highly relevant and can be relied on

exclusively to yield a finding as to disability." Ortiz v. Sec'y of


                                         -4-
HHS, 

, 524 (1st Cir. 1989).

       A. Pain

       "Pain may be a nonexertional factor to be considered in

combination with exertional limitations as well as a separate or

independent ground for disability." Gagnon v. Sec'y of HHS, 

,   666    n.8   (1st    Cir.   1981).            Claimant   suggests    that

limitations         in     his        postural      and         manipulative       functions

(specifically, bending and reaching) caused by his pain symptoms

significantly eroded the relevant occupational base.                           Substantial

evidence supports the ALJ's determination that claimant's pain did

not amount to a significant nonexertional impairment.3

       The two RFCs reached different conclusions regarding how the

medical       findings         translated         into        functional     nonexertional

limitations.            The RFC prepared by the non-examining physician

("non-examining           RFC")       reported          that    claimant     could     stoop

"occasionally," and that there were no limitations in claimant's

reaching ability.                The other RFC, prepared by an examining

physician ("examining RFC"), reported that claimant could "never"

stoop and that he could reach only "occasionally."

       "A     bending      restriction        .     .     .    constitutes     a   distinct

nonexertional           limitation."       

.     The


       3
        In reaching this conclusion, we have not considered the
medical report of treating physician Dr. Pagán, which was
submitted to the Appeals Council, but not the ALJ. We "may
review the ALJ decision solely on the evidence presented to the
ALJ." Mills v. Apfel, 

, 5 (1st Cir. 2001).

                                              -5-
Commissioner has stated that "[i]f a person can stoop occasionally

.   .   .   in    order    to   lift   objects,    the   sedentary   and    light

occupational base is virtually intact." Social Security Ruling 85-

15, 

, *7.          Reaching is an activity "required in almost

all jobs. Significant limitations of reaching . . . may eliminate

a large number of occupations a person could otherwise do." 

RFC was based on a review of the medical

evidence and took claimant's allegations of pain into account. Its

conclusion        that    claimant     could   bend   "occasionally"   is     not

inconsistent with the examining physicians' findings that he could

bend forward only 30 or 45 degrees.               See 

(upholding an ALJ's finding that Ortiz's bending restriction did

not significantly reduce his potential occupational base where

bending range was limited to 30 to 40 degrees and RFC indicated

that Ortiz was capable of "occasional" bending). The non-examining

RFC's conclusion that claimant's reaching ability was not limited

is supported by Dr. Babilonia's examination report, which indicated

that claimant's joint movements in his shoulders were normal, that

there was no significant inflammation or swelling of the joints,

and that (other than in the dorsal spine area) his joints were

normal.

        The examining RFC noted that its assessments were based on the

"patient's own reports" that certain activities exacerbated his

symptoms.        Therefore, the ALJ was justified in giving less weight


                                         -6-
to that RFC. See 20 C.F.R. § 404.1527(d)(3) ("The more a medical

source      presents    relevant     evidence       to   support   an     opinion,

particularly medical signs and laboratory findings, the more weight

will   we    give    that    opinion.").       Although    the   two    RFCs    were

inconsistent in certain respects, the medical evidence was largely

consistent.         Both consulting physicians found that claimant's

ability to bend was limited (varying only from 30 degrees to 40

degrees).     Conflicts in the evidence regarding the range of motion

in claimant's left shoulder were for the Commissioner to resolve.

See Rodriguez Pagan v. Sec'y of HHS, 

, 3 (1st Cir. 1987).

       We conclude that there is substantial evidence to support

findings (i) that claimant was capable of at least occasional

bending,      and    (ii)     that   his    reaching      abilities     were     not

significantly       limited     by   his    pain.        Therefore,     there    was

substantial evidence to support the Commissioner's decision that

these nonexertional limitations did not so significantly erode the

occupational base as to require the testimony of a vocational

expert.

       B. Adjustment Disorder

       The issue concerning claimant's mental impairment is governed

by our decision in Ortiz, in which we approved the use of the Grid

in circumstances similar to the present case.               There, we held that

exclusive reliance upon the Grid is appropriate so long as the

claimant's     mental       impairment     does   not    "interfere     more    than


                                         -7-
marginally with the performance of the full range of unskilled

work." 

.            This determination involves the

following two lines of inquiry: "1) whether a claimant can perform

close to the full range of unskilled work, and 2) whether he can

conform to the demands of a work setting, regardless of the skill

level involved." 

has described the mental

demands of unskilled work as follows:

     the abilities (on a sustained basis) to understand, carry
     out, and remember simple instructions; to respond
     appropriately to supervision, coworkers, and usual work
     situations; and to deal with changes in a routine work
     setting.

SSR 85-15, 

, at *4.              Conforming to the demands of a

work setting involve "getting to work regularly . . . and remaining

in the workplace for a full day." 

      There is substantial evidence to support the ALJ's findings

that claimant was "alert, coherent, relevant, logical and oriented

in   the   three    spheres,"     able    to    understand       and    carry    out

instructions, had sustained attention and concentration, and could

complete    a   normal     work   day     and    work     week    without       undue

interruptions.      The only contrary evidence is the treating health

center's   report     of   "diminished"       attention    and    concentration.

However, the       examining   psychiatrist       concluded      that   claimant's

concentration was "intact." "[R]esolution of such conflicts in the

evidence is for the [Commissioner]." Rodriguez 

.   Although the examining psychiatrist did not complete a mental


                                        -8-
RFC form, that failure did not preclude the Commissioner "from

rendering common-sense judgments about functional capacity based on

medical findings." 

.                   On these facts,

substantial evidence supports the conclusion that claimant's mental

impairment does not "interfere more than marginally with the

performance of the full range of unskilled work." 

.

      Based    on    the     foregoing,     and   according   the     appropriate

deference to the Commissioner's decision, we find no error in the

ALJ's treatment of claimant's subjective complaints of pain.                  The

ALJ   partially          credited    claimant's   allegations    of    pain   and

discomfort related to his herniated disc, and determined that he

could perform only light work.              There is substantial evidence in

the   record        to     support    the    Commissioner's     decision      that

nonexertional limitations imposed by claimant's pain and mental

condition did not so significantly erode the occupational base that

testimony of a vocational expert was required.                Consequently, the

judgment of the district court is affirmed.




                                          -9-